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As Troll Debate Rages, Firms Pressed To Pick Sides

Stanford Law Professor Mark Lemley weighs in on the debate over representing patent trolls and picking sides in The Recorder.

As the rhetoric over patent trolling reaches a fevered pitch, litigation clients — on both sides — are demanding greater allegiance from their outside counsel.

At this year's American Bar Association Conference in San Francisco, for example, LinkedIn general counsel Erika Rottenberg told a roomful of people that her company asks firms about their NPE work — and that dissembling could be a deal-breaker.

"While only a few [companies] have laid down a blanket 'no one who represents trolls will represent us' rule, I think the general sense in most Valley firms today is that as a practical matter you have to pick a side," Mark Lemley, director of the Stanford Program in Law, Science, and Technology, wrote in an e-mail.

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An analysis of IP litigation data compiled by Lex Machina suggests major tech firms are fading from a certain side of the docket. Intellectual Ventures, for one, has been represented by the likes of Weil, Gotshal & Manges; Irell & Manella and Quinn Emanuel Urquhart & Sullivan in the past. But this calendar year, the list of firms filing suits on its behalf is dominated by IP boutiques like Farnan, Desmarais and Tensegrity.